Judge Bress Justified keeping Congress ignorant of 1st Amendment violations by making Twitter keep silent; violating their First Amendment Rights

 Judge Bress Justified keeping Congress ignorant of 1st Amendment violations by making Twitter keep silent; violating their First Amendment Rights.

TWITTER, INC. V. MERRICK GARLAND, ET AL

Docket: 20-16174

Opinion Date: March 6, 2023

Judge: Bress

Areas of Law: Civil Rights, Constitutional Law

In support of its classified national security investigations, the United States served administrative subpoenas and orders requiring Twitter to provide the government with certain information about Twitter users. In its Transparency Report, Twitter wished publicly to disclose certain information about the aggregate numbers of these governmental requests that it received between July and December 2013. The FBI determined that the number of subpoenas and orders and related information was classified and that Twitter’s disclosure of this information would harm national security. The FBI allowed Twitter to release its Transparency Report only in a partially redacted form.

The Ninth Circuit affirmed the district court’s summary judgment for the United States in an action brought by Twitter alleging First Amendment violations arising from the FBI’s restrictions on Twitter’s publication of a self-described “Transparency Report.” The panel held that Twitter’s constitutional challenges failed to persuade. The panel acknowledged that Twitter has a First Amendment interest in commenting on matters of public concern involving national security subpoenas. Nevertheless, based on a careful review of classified and unclassified information, the panel held that the government’s redactions of Twitter’s Transparency Report were narrowly tailored in support of the compelling government interest in national security. The panel concluded that the government’s redactions of Twitter’s Transparency Report did not violate the First Amendment.

The panel next held that the statutory scheme governing the permissible disclosure of aggregate data about the receipt of national security legal process allowed for sufficient procedural protections. Finally, the panel held that due process did not require that Twitter’s outside counsel receive classified information by virtue of Twitter filing this lawsuit.

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